H1B out of status help - Urgent Urgent!!!

[unidood]

Sorry for the long post.

I am writing on behalf of my fiancee. For the past two years, She was working full time and has been on H1 since Oct 2012. She was told by the management that she has been terminated as of today, without any advance notice. The company has not consulted even their attorney before they decided to terminate her (by that I mean once she was terminated she did not receive any information from the attorney). The below were not provided to her yet and neither have been discussed.

1. Her termination letter.
2. Her experience letter
3. Air ticket back to the country
4. Severance (if at all)

A little more detail about the company. The management does not have any idea about how immigration visa works (I guess). They do not have a HR in the company, and the only person who is responsible for correspondence with the company attorney is on leave till the weekend. The management mentioned that they can inform the attorney about the termination once this person is back next week. 

Is it even legal to do something like this? Will this affect my fiancee’s status. 
The employer has not yet informed the attorney and my fiancee has not been legally notified of her change in visa status. Will she be violating her period of stay in the US if she waits till next week for the company management to contact the attorney.
As per what I have read in online immigration forums, she is already out of status if today was her termination date.

We are getting married in Oct , in India, and she has to travel and has no other alternative. she is not sure on what to do next and what her options are.

1. Another employer has agreed to file for LCA and transfer her H1 in 1-2 days. Should she go ahead with this and will it keep her in status?
2. Go back to India and come back on H4? If so, can she change her status to H1 when she comes back or does she have to wait till April and file for a new H1?

Please advise. Thanks very much.

[omshiv]

She can do a COS to B1/B2. Even a H4 to H1 is possible.

[jairichi]

Sorry for the long post.

I am writing on behalf of my fiancee. For the past two years, She was working full time and has been on H1 since Oct 2012. She was told by the management that she has been terminated as of today, without any advance notice. The company has not consulted even their attorney before they decided to terminate her (by that I mean once she was terminated she did not receive any information from the attorney). The below were not provided to her yet and neither have been discussed.

1. Her termination letter.

2. Her experience letter

3. Air ticket back to the country

4. Severance (if at all)

A little more detail about the company. The management does not have any idea about how immigration visa works (I guess). They do not have a HR in the company, and the only person who is responsible for correspondence with the company attorney is on leave till the weekend. The management mentioned that they can inform the attorney about the termination once this person is back next week. 

Is it even legal to do something like this? Will this affect my fiancee’s status. 

The employer has not yet informed the attorney and my fiancee has not been legally notified of her change in visa status. Will she be violating her period of stay in the US if she waits till next week for the company management to contact the attorney.

As per what I have read in online immigration forums, she is already out of status if today was her termination date.

We are getting married in Oct , in India, and she has to travel and has no other alternative. she is not sure on what to do next and what her options are.

1. Another employer has agreed to file for LCA and transfer her H1 in 1-2 days. Should she go ahead with this and will it keep her in status?

2. Go back to India and come back on H4? If so, can she change her status to H1 when she comes back or does she have to wait till April and file for a new H1?

Please advise. Thanks very much.

Well, sorry to hear that. Check the offer letter and contract letter signed by employee to know whether any notice period is involved before termination or resignation. If yes, correspond with the employer citing them. She is out of status now.

(1) If they get her LCA approved and get a receipt notice from USICS for filing a H1B petition then she could stay in US on valid status till a decision is made on that petition.

(2) She can come back on H4 after wedding. But, a new employer has to file for a COS from H4 to H1 and upon approval she could start working immediately and not to wait till April

[JoeF]

She should do a COS to B2 or H4 immediately.

And she should discuss things with an immigration lawyer. The employer is required by law to pay for her return to her home country if she wishes to go back.

[CCR]

As long as the new H1 is applied for ASAP it should be fine. Looking at the timing of things I guess it should be ok. Worst case if they ask for latest paystubs via an RFE you will have them at that point for the last 2 weeks she's worked. 

[unidood]

Thanks a lot CCR, JoeF, jairichi, omshiv.

 

We might be going with transferring the H1 immediately. But before that I have one more question.

 

If her company revokes her H1 with USCIS, and if she comes back on H4 to US, can she convert from H4 to H1 without the cap? Can she do the COS anytime after she comes back? (i.e not in April but say in Novemeber/December)

[jairichi]

Thanks a lot CCR, JoeF, jairichi, omshiv.

 

We might be going with transferring the H1 immediately. But before that I have one more question.

 

If her company revokes her H1 with USCIS, and if she comes back on H4 to US, can she convert from H4 to H1 without the cap? Can she do the COS anytime after she comes back? (i.e not in April but say in Novemeber/December)

Yes, she can do a COS from H4 to H1B and start working immediately once COS gets approved.

[unidood]

Yes, she can do a COS from H4 to H1B and start working immediately once COS gets approved.

jairichi,

 

Thank you. Does she have to file a new H1 application for the COS or will the COS be done by transferring the old H1 itself.

[JoeF]

Thanks a lot CCR, JoeF, jairichi, omshiv.

 

We might be going with transferring the H1 immediately. But before that I have one more question.

 

If her company revokes her H1 with USCIS, and if she comes back on H4 to US, can she convert from H4 to H1 without the cap? Can she do the COS anytime after she comes back? (i.e not in April but say in Novemeber/December)

Yes, of course she can.

H1 revocation is completely irrelevant for her. The employer is required by law to inform USCIS if the person no longer works for the employer.

It has nothing at all to do with any COS, or quota or what-have-you. There seems to be a rumor out there that H1 revocation would be bad, but it isn't. It is the law, that's all. It doesn't matter to the person at all.

[unidood]

Thank you for your advice. After some deliberation, we decided to go with option 2. She will come back on H4 and make a COS to H1.

[jairichi]

jairichi,

 

Thank you. Does she have to file a new H1 application for the COS or will the COS be done by transferring the old H1 itself.

Her new employer has to file a COS from H4 to H1B and upon approval she can work immediately.